The Post-Graduation Work Permit

Canada’s Post-Graduate Work Permit (“PGWP”) program allows international students who have completed certain Canadian post-secondary programs to obtain work permits after graduating.  The work permits are open, meaning that the graduates can work for any employer(s) in any Canadian province(s).  It is a fantastic program that enhances the competitiveness of Canadian post-secondary institutions internationally, and is normally an essential transitory step for international graduates looking to eventually obtain Canadian permanent residency.

However, every year there are many international students who mistakenly think that they will be eligible to participate in the program after graduating only to discover midway through their studies that they cannot.  It is accordingly very important that all international students in Canada understand how the PGWP program works.

Basis in Law

Section 205 of Canada’s Immigration and Refugee Protection Regulations provides the government with the authority to create programs to issue work permits to foreign nationals when it is satisfied that public policy objectives relating to the competiveness of Canada’s economy or academic institutions are met.  The PGWP is one of these programs, and detailed information about it can be found on the Immigration, Refugees and Citizenship Canada (“IRCC“) website here.

As the Federal Court has noted in numerous decisions (such as Osahar v. Canada), immigration officers can determine these requirements to be binding.

Eligibility and Validity

Outside of Quebec, in order for an international graduate to obtain a PGWP after graduating, an international student must:

  • have a valid study permit when applying for their PGWP;
  • have continuously studied full time in Canada, except for the final academic session, where part-time studies are permitted;
  • have completed and passed a program of study that is at least eight months in duration at either a public post-secondary institution, a private post-secondary institution that operates under the same rules and regulations as public institutions, or at a Canadian private institution if the student was enrolled in a program of study which led to a degree; and
  • apply for the work permit within 90 days of receiving written confirmation from their educational institution that they have met the requirements for completing their program of study.

A PGWP’s duration will be equal to the length of the educational program that the international graduate completed, up to a maximum of three years.  Any completed program that is longer than two-years will result in a three-year work permit.  In other words, a two-year diploma and a four-year degree will both result in a three-year work permit.

It is important to note that it is the length of the program of study that is important, and not the actual time that it takes an international student to complete their program. For example, if a student enrolls in a program of study that is normally eight months in duration, but completes it in six months, then the student will be able to obtain an eight-month work permit after graduating. Conversely, an international student who takes two years to complete a one-year program will only receive a one-year PGWP.

There are complicated rules and scenarios for students transferring from one program to another, or completing multiple programs, that are beyond the scope of this article.  However, a particularly common one is that students who obtain a one-year degree or diploma from an eligible institution in Canada after having obtained, with the prior two-years, another diploma or degree from an eligible institution in Canada, may be issued a work permit for up to three years.  For example, if a student obtained a one-year diploma from the University of British Columbia in 2013, and then in 2015 obtained a MBA from the University of Toronto, then he would be able to obtain a three-year PGWP.

Graduates may submit their applications online, or, in certain cases at a Canadian port of entry or at overseas visa offices.  Students who have completed their program of study and who apply for their PGWPs are permitted to work in Canada while IRCC processes their applications, provided that they were indeed full-time students enrolled in eligible programs while they were studying, and that they did not exceed their authorized off-campus work periods while they were students.

Finally, unlike with international students, the spouses or common-law partners of PGWP holders are not automatically entitled to open work permits.  They will only be eligible if the PGWP holder obtains skilled employment, and can demonstrate this to IRCC by presenting an offer of employment as well as a copy of one or more pay slips.

Ongoing Complications

Students who complete a program of study granted by a non-Canadian institution located in Canada are ineligible to obtain work permits under the PGWP program.  However, students completing a program of study that has, as part of the program, an overseas component, such as an exchange, will be eligible as long as they earn a Canadian educational credential.

There are two further restrictions, or potential restrictions, to obtaining PGWPs that are currently the subject of litigation that potential international students and graduates should understand.

The first is that students participating in distancing learning programs, either abroad or in Canada, are ineligible to obtain PGWPs.  In 2015, this restriction generated considerable media attention, as IRCC refused the PGWP applications of an entire graduating class at a private post-secondary institution after IRCC determined that the institution’s program constituted online learning.  Some of these graduates have sought intervention from the Federal Court of Canada, and one of the questions before the court is whether there is a percentage of online courses threshold that must be met before IRCC can declare a program ineligible.  Until either IRCC or the Federal Court provides clarification on this matter, international students who wish to participate in the PGWP program should understand the possible negative consequences of enrolling in any online courses.

Second, recent graduates applying for PGWPs must ensure that they complete their PGWP applications promptly and properly.  With most work permits applications, if IRCC either refuses or bounces an application for incompleteness, then an applicant can typically apply for restoration of status within 90 days.  It is not clear, however, whether restoration is possible in the case of the PGWP because of the IRCC’s requirement that a recent graduate’s study permit be valid when they apply for their PGWP, although several Federal Court decisions seem to imply that it really is up to the officer.

Indeed, the PGWP has a surprisingly high refusal rate. During the first six months of 2016, the PGWP refusal rate exceeded 20% in every month except May, and in both June and March was 40% or more. 


Work Permits for Post-Doctoral Fellows and Research Award Recepients

Immigration, Refugees and Citizenship Canada has a Labour Market Impact Assessment (“LMIA“) exemption for post-doctoral fellows awarded a Doctorate of Philosophy and research award recipients. The advantage of such an exemption is that a person can obtain a work permit without the need of the prospective employer to first test the Canadian labour market.

Post-doctoral fellows holding a Ph.D. or its equivalent

To qualify for a work permit under this LMIA exemption, the prospective foreign worker must:

  • have completed, or be expecting to complete shortly, their doctorate;
  • be working in a field related to that in which they earned, or are earning, their Ph.D.;
  • be the direct recipient of the award involving work and remuneration;
  • actively contribute to and benefit a Canadian research project;
  • demonstrate academic excellence or expertise in a field related to the particular work to be undertaken;
  • be working in a time-limited position that reflects the experience and expertise of the applicant and the role that they will play on the project;
  • have a significant role to play or value to add to the research project.
  • hold an official position or an affiliation or registration with a credible academic or educational institution or agency in their country of citizenship or residence.

The post-doctoral fellows can either be the direct recipients of theaward or be offered a time-limited position to undertake research on behalf of or as part of a team of researchers.

Awards

In order for a person to receive a work permit based on an award, the prospective foreign worker must have received an award that was:

  • given based on merit and academic excellence;
  • based on the result of a competitive assessment and review process.
  • not be primarily for recruitment or commercial purposes

The employer must be a credible Canadian academic or educational institution or agency, or a closely affiliated organisation

Approval Rates

As can be seen in the table below, the approval rate for these types of work permits is very high, and is typically over 95%.

 


Judges, Referees, and Work Permits

Does a rodeo announcer require a work permit and a Labour Market Impact Assessment to give background information on radio contestants during a rodeo?  The answer is.. it depends.

Section 186(m) of the Immigration and Refugee Protection Regulations (“IRPR“) provides that:

Work Without a Work Permit

186. A foreign national may work in Canada without a work permit

(m) as a judge, referee or similar official at an international amateur sports competition, an international cultural or artistic event or competition or an animal or agricultural competition;

Amateur Sports Competitions and Events

The Citizenship and Immigration Canada (“CIC“) website states that for judges, referees and similar officials involved in an international amateur sports competition, the event should be organized by an international amateur sporting association and should be hosted by a Canadian organization.  The distinction between “organizing” and “hosting” becomes important, and supporting documents needs to reflect this.

The CIC website further states that events may include international or university games, winter or summer Olympics, etc., and that an “amateur” sports competition is generally defined as one in which the participating athletes are not paid to compete or otherwise participate in the event.  The CIC website notes that there are exceptions to this, as of course in recent decades the line between “professional” sporting events and “amateur” sporting events has become blurred.

Cultural or Artistic Competitions and Events

The CIC website states that judges or adjudicators of artistic or cultural events such as music and dance festivals are included in IRPR r. 186(m), as are judges for animal shows and agricultural competitions.

So what about the rodeo announcer? The following is what CIC’s rationale in the approval of an application under this exemption was based on the facts provided to them. I note that this was not my file, but rather a copy of an approval that I obtained through an Access to Information Act request.

A201433267_2015-12-18_08-29-36-2


Performing Artists and Work Permits

I was recently asked whether an opera singer working in Canada for three months requires a work permit and a Labour Market Impact Assessment.  The answer is.. it depends.

Section 186(g) of the Immigration and Refugee Protection Regulations (“IRPR“) provides that:

Work Without a Work Permit

186. A foreign national may work in Canada without a work permit

(g) as a performing artist appearing alone or in a group in an artistic performance — other than a performance that is primarily for a film production or a television or radio broadcast — or as a member of the staff of such a performing artist or group who is integral to the artistic performance, if

(i) they are part of a foreign production or group, or are a guest artist in a Canadian production or group, performing a time-limited engagement, and

(ii) they are not in an employment relationship with the organization or business in Canada that is contracting for their services.

No Work Permit Required

Examples of performing artists who do not need a work permit to work in Canada include:

  • Foreign-based musical and theatrical individuals and groups and their essential crew;
  • street performers (buskers), DJs;
  • busking;
  • a foreign or traveling circus;
  • guest artists (not employed) within a Canadian performance group for a time-limited engagement;
  • wrestlers from the World Wrestling Entertainment, Inc. (WWE) (and similar groups);
  • persons performing at a private event for a time-limited engagement, such as a wedding;
  • air show performers;
  • conductors;
  • artists working at or attending a showcase or workshop; which may include competing, judging competitors, demonstrating their skill, and holding a class related to the showcase or
  • workshop, as well as visual artists creating or displaying their own work (normally no more than five days, although some flexibility in duration may be permitted); and
  • rodeo contestants (e.g., bronco-riders, steer-ropers, barrel racers).

Of course, in addition to meeting the above sample activities, the performing artists must also be part of a foreign production or group, or be a guest artist in a Canadian production or group, performing a time-limited engagement. As well, they cannot be in an employment relationship with the organization in Canada that is contracting for their services.  The Citizenship and Immigration Canada (“CIC“) website, states that a “time-limited engagement” would typically be two weeks or less, however, it also states that a longer duration is possible.  In the case described at the start of this post, CIC determined that the three-month contract that the opera singer had constituted a time-limited engagement.  The CIC website does explicitly state, however, that a foreign national who rehearses and performs with a Canadian orchestra for an entire season needs a work permit.

The CIC website also has a somewhat confusing list of what scenarios would constitute an “employment relationship,” and what would not.  The threshold appears to be whether a performing artist moves beyond a short-term ‘gig’ and into a regular performance basis, usually in the same venue.  For example, the CIC website states that an employment relationship is not created where a couple hires a band to perform at their wedding, or where a festival hires a signer to perform twice in a weekend.  However, an employment relationship is created where a dinner theatre hires a foreign singer to perform five nights a week on a weekly basis for four weeks or longer, or where a city contracts a foreign puppeteer to do three shows a day in a park for the whole summer.

A Note on Bars

Canadian immigration legislation previously provided that performing artists who would be performing at bars, restaurants, or similar establishments needed a work permit.  This, however, is no longer the case.  As such, foreign artists performing in Canada for time-limited engagements are treated the same, irrespective of venue.

Work Permit Required

Examples of activities that do not constitute being a “performing artist” for the purpose of the work permit exemption include:

  • Actors, singers, crew, etc., in Canadian theatrical productions, shows, or circuses;
  • screen and television actors, unless part of a group making a motion picture under intergovernmental co-production;
  • artists involved in taped television dramatic productions and live dramatic performances that are being filmed;
  • technicians working in film theatre and television productions (with certain exceptions);
  • persons doing dubbing work in films;
  • persons making a film, videotape or sound recording for use in advertising commercials;
  • persons participating in making a motion picture or documentary, no matter who finances the project, unless they meet certain exemptions available to the news media;
  • persons temporarily occupying a permanent position at a permanent performing arts organization (i.e., those not considered to be guest artists).
  • individuals involved in making films, television, internet and radio broadcasts (with the exception of co-production agreements);
  • individuals who will be in an employment relationship with the organization or business contracting for their services in Canada;
  • performers in Canadian-based productions or shows; and
  • rodeo performers or side show workers (e.g., rodeo clowns and announcers, horsemanship or trick riding displays, ‘half-time acts’ and other specialty act entertainers).

Specific Examples, and Other Exemptions

The CIC website lists numerous examples of occupations that are similar to performing artists, and what the work permit requirements are.  This webpage is useful because it illustrates that there are a myriad of work permit and/or Labour Market Impact Assessment (“LMIA”) exemptions that a person may be encompassed by.

For example, while an Adjudicator at a music festival would not be a performing artist, officials at international cultural festivals are specifically exempted from the requirement to obtain work permits.

A circus employee who travels with a foreign circus would not require a work permit. However, where the employer is a Canadian circus, then a work permit and LMIA will be required. An exception to this, however, is Cirque du Soleil, whose employees will typically be granted Significant Benefit work permits.

Film producers employed by foreign film or television companies coming to produce a film or documentary entirely funded from abroad are not performing artists, however, they are likely exempt from obtaining work permits as Business Visitors.

The World Wrestling Entertainment

Fans of the WWE will perhaps be interested to know how CIC treats their favourite wrestlers.  The CIC website states:

World Wrestling Entertainment

These performers and their accompanying essential crew may be authorized to enter Canada pursuant to R186(g) which includes a stipulation that the performance not be “primarily for a film production or television or radio broadcast”. While most of their staged performances are broadcast live in a pay-per-view format or filmed for later commercial broadcast, this is not considered to be the primary purpose of the performance.

A substantial portion of the WWE’s revenues from live events does stem from simultaneous or subsequent broadcast and film. However, a substantial portion is also received from ticket sales to the live events. Furthermore, if the primary intent of these performances were not to attract and entertain a live audience, then there would be no reason for the WWE to undertake the expense and inconvenience of offering a touring performance.

Note: The R186(g) exemption does not apply to any WWE workers directly involved in the film, television or radio broadcast elements of the production. This includes all WWE camera operating positions.

 


Increased Fees and Compliance in the International Mobility Program

On February 11, 2015, the Government of Canada publicized amendments to the Immigration and Refugee Protection Regulations that affected most applicants in the International Mobility Program (the “IMP“).

The IMP includes all streams of work permit applications that are exempt from the Labour Market Impact Assessment (“LMIA“) process, including workers covered by free trade agreements, people participating in exchange programs like International Experience Canada (“IEC“), provincial nominees, intra-company transferees, post-graduate work permit holders, etc.

In reviewing the changes described below, it is important to understand the distinction between a closed work permit and an open work permit. A closed work permit limits a foreign worker to a particular employer. An open work permit allows the foreign worker to work for any employer.

  • The changes consist of:
    • Requiring that employers of prospective closed work permit holders in the IMP provide information to Citizenship and Immigration Canada (“CIC“) before their prospective employees apply for work permits;
    • Requiring that employers of prospective closed work permit holders pay a $230.00 “employer compliance fee” per employee before their prospective employees apply for work permits; and
    • Introducing a new $100.00 “privilege fee” on open work permit applicants.

The Government of Canada has announced that the above changes will all take effect on February 21, 2015.

Continue reading “Increased Fees and Compliance in the International Mobility Program”


Restoration of Status

If a visitor, worker, or student loses their status in Canada, then they may apply to restore their status.  Such applications are referred to as “restoration applications.”  Section 182 of the Immigration and Refugee Protection Regulations provides that:

182. On application made by a visitor, worker or student within 90 days after losing temporary resident status as a result of failing to comply with a condition imposed under paragraph 185(a), any of subparagraphs 185(b)(i) to (iii) or paragraph 185(c), an officer shall restore that status if, following an examination, it is established that the visitor, worker or student meets the initial requirements for their stay, has not failed to comply with any other conditions imposed and is not the subject of a declaration made under subsection 22.1(1) of the Act.

Citizenship and Immigration Canada’s Inland Processing Manual (the “Manual“) further provides that if an applicant applies to extend their temporary resident status after their temporary resident status expires, but within the 90-day restoration period, then the Case Processing Centre – Vegreville will inform them that they must also apply for restoration of status.  The applicant will be given 90 days from the date of notification to submit their restoration application.  This is an important point to note, as many people mistakenly assume that the 90-day restoration period only starts when a person’s work permit, visitor record, or study permit expires.  Rather, it is when their temporary resident status expires, which includes implied status.

The Manual also provides that restoration cannot be granted at Canadian ports of entry.

Approval Percentages

As can be seen in the tables below, the percentage of restoration applications approvals is loser than for people simply seeking to extend their status.  This is not surprising.

Restoration Requested
Type Approved Refused Withdrawn %
E-App Study Permit 1554 173 93 90%
Visitor Record 478 105 126 82%
Work Permit 838 117 161 88%
Total 2870 395 380 88%
Paper Study Permit 1244 246 6 83%
Visitor Record 1965 537 18 79%
Work Permit 2794 551 24 84%
Total 6003 1334 48 82%

 

No Restoration Requested
Type Approved Refused Withdrawn %
E-App Study Permit 44135 1625 469 96%
Visitor Record 15739 841 1081 95%
Work Permit 68732 3332 1194 95%
Total 128606 5798 2744 96%
Paper Study Permit 14700 1078 41 93%
Visitor Record 26950 2238 112 92%
Work Permit 62728 5312 403 92%
Total 104378 8628 556 92%

 

* This data is for the first three quarters of 2013.

** For the approval percentage I removed the withdrawn column as applications could be withdrawn for numerous reasons, and do not indicate the likeliness of approval or refusal.

Time Lines
Applicants must submit restoration applications within the specified period.  The failure to do so will result in an application being refused.  Indeed, if an application for restoration is submitted outside the 90-day period imposed by law, then the Courts have held that Citizenship and Immigration Canada must refuse the application (Novak v. Canada, 2004 and  Avi Adroh v. Canada, 2012).The 90 Day Deadline

As well, unlike with many areas of immigration law, the 90-day period starts the day an applicant’s temporary resident status expires.  It does not begin when the applicant receives CIC’s decision (Nzegwu v. Canada, 2010).  As such, even if there is a 3-4 month delay by Citizenship and Immigration Canada in informing a foreign national about a loss of temporary resident status, the applicant cannot submit a restoration applicaiton because he or she is statute barred from doing so.

Working During Implied Status

Another myth that exists is that foreign nationals can work in Canada during the restoration period.  This is not true. Regulation 182 provides that a foreign national can restore temporary resident status if the foreign national did not comply with a condition imposed under regulations 185(a), 185(b)(i) to (iii), or paragraph 185(c) of the Immigration and Refugee Protection Regulations. These sections state that:

185. An officer may impose, vary or cancel the following specific conditions on a temporary resident:
(a) the period authorized for their stay;

(b) the work that they are permitted to engage in, or are prohibited from engaging in, in Canada, including
(i) the type of work,
(ii) the employer,
(iii) the location of the work,

(c) the studies that they are permitted to engage in, or are prohibited from engaging in, in Canada, including
(i) the type of studies or course,
(ii) the educational institution,
(iii) the location of the studies, and
(iv) the times and periods of the studies;

Working without authorization is prohibited by regulation 183(1)(b) of the Regulations.  As such, applicants cannot work during the restoration period.  Indeed, if either the Canada Border Services Agency or Citizenship and Immigration Canada discovers the unauthorized work then the applicant will be issued an inadmissibility report and/or denied a work permit.

Removal

Generally speaking, it is rare that the Canada Border Services Agency will issue a removal order against someone who has applied for restoration of status.  Where they have done so, a quick reading of the jurisprudence indicates that the Federal Court has sided with applicants in determining that this was unreasonable.

In Yu v. Canada, 2005 FC 1213, for example, an individual applied to restore his study permit one day after his status expired.  During the period that Citizenship and Immigration Canada was processing his study permit extension application, the Canada Border Services Agency issued a removal order against the applicant.  The removal order was made on the basis that the applicant had stayed in Canada beyond the period authorized by his stay.   Justice Simpson, however, found this unreasonable, stating that:

It cannot be said that a temporary resident who has applied for restoration of his permit in a timely manner, as he is entitled to do so under the Regulations, has failed to comply with or breached the IRPA.

However, the Federal Court has ruled that a Minister’s delegate has a duty to consider eligibility to apply for restoration and/or that a restoration has been submitted when determining whether to issue an inadmissibility report. (Sui v. Canada, 2006)


Ministerial Instructions – Revoking, Suspending, and Refusing to Process Work Permits and Labour Market Opinions

On December 27, 2013, Citizenship and Immigration Canada (“CIC“) and the Ministry of Economic and Social Development (“Service Canada“) released Ministerial Instructions regarding the revocation of work permits and Labour Market Opinions (“LMOs“), now called Labour Market Impact Assessments (“LMIAs“).  The Ministerial Instructions will allow the Government of Canada to rapidly respond to economic developments by immediately reducing the intake of foreign workers, will increase program integrity, and create uncertainty for Canadian businesses.

These are the first Ministerial Instructions to be issued by Service Canada since the Government of Canada amended s. 30 of the Immigration and Refugee Protection Act (“IRPA“) in the first 2013 Budget Implementation Act.  Section 30 of IRPA now reads:

Work and study in Canada

30. (1) A foreign national may not work or study in Canada unless authorized to do so under this Act.

Authorization

(1.1) An officer may, on application, authorize a foreign national to work or study in Canada if the foreign national meets the conditions set out in the regulations.

Instructions

(1.2) Despite subsection (1.1), the officer shall refuse to authorize the foreign national to work in Canada if, in the officer’s opinion, public policy considerations that are specified in the instructions given by the Minister justify such a refusal.

Concurrence of second officer

(1.3) In applying subsection (1.2), any refusal to give authorization to work in Canada requires the concurrence of a second officer.

Purpose

(1.4) The instructions referred to in subsection (1.2) shall prescribe public policy considerations that aim to protect foreign nationals who are at risk of being subjected to humiliating or degrading treatment, including sexual exploitation.

Revocation of work permit

(1.41) An officer may revoke a work permit if, in the officer’s opinion, public policy considerations that are specified in instructions given by the Minister justify the revocation.

For greater certainty

(1.42) For greater certainty, subsection (1.41) does not affect any other lawful authority to revoke a work permit.

Revocation or suspension of an opinion

(1.43) If, in the view of the Department of Human Resources and Skills Development, public policy considerations that are specified in instructions given by the Minister of Human Resources and Skills Development justify it, that Department may

(a) revoke an opinion provided by that Department with respect to an application for a work permit;

(b) suspend the effects of the opinion; or

(c) refuse to process a request for such an opinion.

For greater certainty

(1.44) For greater certainty, subsection (1.43) does not affect any other lawful authority to revoke an opinion referred to in that subsection.

Publication

(1.5) Instructions given under this section shall be published in the Canada Gazette.

Service Canada – Ministerial Instructions Respecting Labour Market Opinions

Service Canada’s Ministerial Instructions clarify that the public policy considerations which may justify the revocation of a LMIA pursuant to s. 30(1.43)(a) of IRPA with respect to a work permit application are:

  • if new information becomes available after the LMIA is provided indicating that the employment of the foreign national under the work permit is having or will have a significant negative effect on the labour market in Canada.  It is unclear how this will work in practice, who the burden of proof is on, and what the standard of proof is;
  • that the employer or group of employers provided false, misleading or inaccurate information in the context of the request for that opinion.  It is unclear how material the misleading or inaccurate information has to be in order to justify the revocation of a LMIA; and
  • that the employer’s name has been added to the employer blacklist referred to in the proposed subsection 209.91(3) of the Immigration and Refugee Protection Regulations.   These regulations are not yet in force yet, but these Minister Instructions suggest that they soon will be.  More information about them can be found in my blogpost here.

Service Canada’s Ministerial Instructions further clarify that the public policy considerations which may justify the suspension of a LMIApursuant to s. 30(1.43)(b) of IRPA with respect to a work permit application are that:

  • new information becomes available after the time that the opinion is provided that, if known at that time, would have led to a different opinion.  It is not clear what such information would be, whether such a determination can only be made by the officer who issued the original LMIA, and how a suspension in this context would be different from a revocation;
  • there are reasonable grounds to suspect that the employer or group of employers provided false, misleading or inaccurate information in the context of the request for that opinion.  In addition to the above questions regarding misleading information in the context of revocation, it is not clear when revocation would be appropriate rather than suspension;
  • there are reasonable grounds to suspect that the employer is not complying with the conditions set out in subsection 209.3 or 209.4 of the proposed (soon to come into effect) Regulations in respect of that work permit or any other work permit and the failure to do so may not be justified under one or the other of those sections, as applicable; and

Finally, the Ministerial Instructions provide that the public policy considerations which may justify Service Canada to refuse to process a LMIAare that:

  • there is information to indicate that the employment of the foreign national under the work permit in any portion, sector, region or occupational group of the labour market in Canada may or will have a significant negative effect on that labour market; and
  • the request for an opinion relates to an application for a work permit the processing of which would be refused under the terms of instructions given by the Minister of Citizenship and Immigration under subsection 87.3(3) of the Act.

The potential implications of the above two points relating to Service Canada’s new ability to refuse to process certain LMIA applications is perhaps best understood when considering CIC’s 2013decision to abruptly announce that six occupations no longer qualified for the CEC.  It is not difficult to envision a future in which Service Canada announces that “effective immediately, Service Canada will no longer process LMIAs for cooks,” or “effective immediately, Service Canada will refuse to process all LMIAs in Sudbury.”  Indeed, on June 20, 2014, ESDC announced that it would refuse to process LMIAs in certain occupations in certain regions.  The need for employers to be made aware of this risk, especially since Service Canada may make such an announcement during the employer’s mandatory advertising period, is crucial.

The Ministerial Instructions took effect on December 31, 2013.  Several LMIAs have since been suspended, and the following is an example of a suspension letter.

CIC – Ministerial Instructions Regarding the Processing of Certain Work Permit Applications

CIC’s Ministerial Instructions provide instructions to officers with respect to the effects of a decision by Service Canada to suspend a LMIA.

Officers have been instructed to suspend the processing of LMIA-based work permit  applications where Service Canada has suspended the relevant LMIA.  CIC will inform such applicants that the processing of their application will not continue until such a time as the LMO suspension is no longer in effect.

The Ministerial Instructions took effect on December 31, 2013.  They apply to all applications received by CIC on or after December 31, 2013.  They also apply to applications that CIC has received butnot yet processed.

CIC – Ministerial Instructions Regarding the Revocation of Certain Work Permits

CIC has clarified that the public policy considerations which may justify the revocation of a work permit are that:

  • the LMO that work permit was based on has been revoked;
  • in the case of a work permit that was issued to a foreign national referred to in any of subparagraphs 200(1)(c)(i) to (ii.1) of the Regulations (which includes the Self-Support Class, the PR Applicants in Canada Class, the Humanitarian Reasons Class, the Significant Benefits Program, the Provincial / Territorial Agreements Program, and the International Agreements Program),  with respect to a specified employer, new information becomes available indicating that the employment of the foreign national under the work permit is having or will have a significantly greater negative effect than benefit with respect to the development of a strong Canadian economy, unless the revocation of that work permit would be inconsistent with any trade obligation of the Government of Canada under an international agreement.  It is unclear how this will work in practice, who the burden of proof is on, and what the standard of proof is.  It is also unclear how provincial nominees will be affected;
  • the employer or group of employers provided false, misleading or inaccurate information in the context of the application for the work permit;
  • the employer’s name has been added to the employer black-list referred to in subsection 209.91(3) of the Regulations; and
  • the work permit was issued to a foreign national on the basis of their relationship to another foreign national and the work permit of that other foreign national has since been or is currently being revoked.

Conclusion

While these Ministerial Instructions as written are significant, it remains to be seen if the “bark is worse than the bite.”  It has been nearly three years since CIC first announced the creation of the employer blacklist.  To date not a single employer has been added to the list.  I still believe that the greatest way to promote compliance is to start publicizing the names of authorized representatives who employers have implicated in promoting fraud.  While Service Canada maintains an internal list of this, publicizing it would ensure that employers avoid the individuals most guilty of this.


The Expression of Interest Immigration System

On October 22, 2013, the Conservative Government of Canada tabled its latest omnibus budget bill, titled “A second act to implement certain provisions of the budget tabled in Parliament on March 21, 2013 and other measures” (the “2nd 2013 Budget Implementation Act“)  Totalling 327 pages, the 2nd 2013 Budget Implementation Act introduces the “expression of interest” immigration system into the Immigration and Refugee Protection Act, sc 2001, c 27 (“IRPA”).

Division 16 of the 2nd 2013 Budget Implementation Act states:

Division 16, Immigration and Refugee Protection Act
Amendments to the Act
290. Part 1 of the Immigration and Refugee Protection Act is amended by adding the following after the heading “IMMIGRATION TO CANADA”:

 

Division 0.1
Invitation to Make an Application
Application for permanent residence — invitation to apply

10.1 (1) A foreign national who seeks to enter or remain in Canada as a member of a class that is referred to in an instruction given under paragraph 10.3(1)(a) may make an application for permanent residence only if the Minister has issued them an invitation to do so, the invitation has not been cancelled under subsection 10.2(5) and the applicable period specified in an instruction given under paragraph 10.3(1)(k) has not expired.

Limitation

(2) An instruction may be given under paragraph 10.3(1)(a) only in respect of a class that is part of the economic class referred to in subsection 12(2).

Expression of interest

(3) A foreign national who wishes to be invited to make an application must submit an expression of interest to the Minister by means of an electronic system in accordance with instructions given under section 10.3 unless the instructions provide that they may do so by other means.

Inadmissible foreign national

(4) A foreign national may not submit an expression of interest if they have been determined to be — and continue to be — inadmissible for misrepresentation.

New expression of interest

(5) A foreign national who has submitted an expression of interest may not submit another one before the expiry of the period referred to in an instruction given under paragraph 10.3(1)(f).

Change in circumstances

(6) A foreign national who is invited to make an application must, before making the application, advise the Minister of any change in their circumstances that relates to any of the criteria on the basis of which they were invited.

Expression of interest — processing

10.2 (1) In processing an expression of interest, the Minister

(a) is to determine whether the foreign national is eligible to be invited to make an application by applying the criteria set out in instructions given under paragraph 10.3(1)(e) and is to advise the foreign national of the determination in accordance with instructions given under paragraph 10.3(1)(l); and

 

(b) subject to subsection (2), is to determine whether, in accordance with instructions given under paragraph 10.3(1)(i), the foreign national occupies the rank required to be invited to make an application and, if so, is to issue the invitation in accordance with instructions given under paragraph 10.3(1)(l).

 

Limitation
(2) A determination under paragraph (1)(b) may be made only if the number of invitations that have been issued is less than the number provided for in an instruction given under paragraph 10.3(1)(j).

 

Electronic system
(3) The Minister is to use an electronic system to carry out any applicable instruction given under subsection 10.3(1) and to make a determination under paragraph (1)(a) or (b).

 

Compliance with instructions
(4) An expression of interest must be processed in compliance with any applicable instruction.

 

Cancellation of invitation
(5) The Minister may cancel an invitation to make an application if
(a) the invitation was issued in error; or
(b) a change in the foreign national’s circumstances results in their no longer meeting the criteria on the basis of which they were invited.

 

Instructions
10.3 (1) The Minister may give instructions governing any matter relating to invitations to make an application referred to in subsection 10.1(1), including instructions respecting

 

(a) the classes in respect of which subsection 10.1(1) applies;

 

(b) the electronic system referred to in subsections 10.1(3) and 10.2(3);

 

(c) the submission and processing of an expression of interest by means of the electronic system;

 

(d) the circumstances in which an expression of interest may be submitted by means other than the electronic system and respecting those other means;

 

(e) the criteria that a foreign national must meet to be eligible to be invited to make an application;

 

(f) the period during which a foreign national remains eligible to be invited to make an application;

 

(g) the personal information that the Minister may disclose under section 10.4 and the entities to which that information may be disclosed;

 

(h) the basis on which an eligible foreign national may be ranked relative to other eligible foreign nationals;

 

(i) the rank an eligible foreign national must occupy to be invited to make an application;

 

(j) the number of invitations that may be issued within a specified period, including in respect of a class referred to in an instruction given under paragraph (a);

 

(k) the period within which an application must be made once an invitation has been issued; and

 

(l) the means by which a foreign national is to be advised of any matter relating to their expression of interest, including an invitation to make an application.

 

Clarification
(2) For greater certainty, an instruction given under paragraph (1)(j) may provide that the number of invitations that may be issued in any specified period in respect of a class be zero.

 

Application of instructions
(3) An instruction given under any of paragraphs (1)(a), (b) and (f) to (l) applies in respect of an expression of interest that is submitted before the day on which the instruction takes effect, unless the instruction provides otherwise.

 

Publication
(4) Instructions given under subsection (1) must be published on the Department of Citizenship and Immigration’s Internet site. Instructions given under any of paragraphs (1)(a), (d) to (g), (k) and (l) must also be published in the Canada Gazette.

 

Criteria provided for under other Divisions
(5) For greater certainty, an instruction given under subsection (1) may provide for criteria that are more stringent than the criteria or requirements provided for in or under any other Division of this Act regarding applications for permanent residence.

 

Disclosure of information
10.4 For the purpose of facilitating the selection of a foreign national as a member of the economic class or as a temporary resident, the Minister may disclose personal information provided to him or her by the foreign national under section 10.1 and referred to in an instruction given under paragraph 10.3(1)(g) to an entity that is referred to in an instruction given under that paragraph.
I have read several Access to Information Act results which contain information about how the Expression of Interest system will work.  I haven’t discussed it before in this blog because I considered it premature until legislation was introduced in the House of Commons.  Now that the legislation has been introduced, I hope to update this post with additional information.
In the meantime, here are some Citizenship and Immigration Canada public backgrounders on the system.